Psychological impact of medical negligence on families
When a patient suffers injury through medical negligence this can have a serious, or in some cases, devastating psychological impact on the patient’s family.
In law the patient is defined as the primary victim and he or she will have a direct claim for the medical negligence. This article looks at when and under what conditions the law will allow certain relatives in the patient’s family to claim for psychological injury for witnessing the negligent treatment. The relatives are defined as secondary victims.
Secondary victims
For reasons of public policy the law restricts when a secondary victim can claim. There are 3 things a secondary victim claimant must establish in order to claim:-
1. A close tie of love and affection with the primary victim
In cases of parent/child, spouses and partners the close tie is assumed. Other relatives, for example, grandparents or brothers and sisters can claim but they still have to show their relationship to the primary victim is sufficiently close in order to claim.
2. Proximity
This means the secondary victim must directly witness the negligent treatment. This normally means actually seeing the treatment. Being told about it isn’t enough.
3. The negligent treatment must be sufficiently shocking so as to induce shock in a person possessing an ordinary level of fortitude and they must then go on to develop a recognised mental health condition such as PTSD.
The Supreme Court has recently clarified what counts as a shocking event for a secondary victim claim in medical negligence. In the case of Paul & Others v Royal Wolverhampton NHS Trust (2024) UKSC1 the court confirmed that there must be a single shocking event. So, for example, if negligence arises out of a long course of treatment this might still be shocking but doesn’t give rise to a secondary victim claim. The result is that secondary victim claims will only arise in limited circumstances. Examples where a claim might arise may be:-
- If the secondary victim is present where the primary victim gives birth, and the birth is negligent;
- Where the secondary victim witnesses negligent surgery on the primary victim or its immediate aftermath.
Ordinary fortitude
This is determined objectively – i.e. by the court. A particularly sensitive person might more easily suffer shock but that’s not enough. The court decides what’s sufficiently shocking and whether a person with ordinary fortitude would be able to withstand the particular shock. The courts also say that when visiting hospital, a relative must expect to see distressing events, for example, the primary victim being intubated. For the secondary victim to succeed he or she must show that what was witnessed was not only sufficiently shocking but also goes beyond the usual distressing events that you might expect to see in a hospital. The net result of all of this is that it’s now very difficult to succeed with a secondary victim claim in medical negligence.
Recognised psychiatric or psychological condition
A secondary victim must also show that after the shock at witnessing the negligent treatment they go on to develop a mental health condition such as depression/PTSD etc. Stress and anxiety are not enough. In this context a medical report from a psychiatrist/psychologist will be necessary.
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